Judge strikes down all 5 teacher protection laws in Vergara lawsuit

June 10, 2014

Los Angeles County Superior Court Judge Rolf Treu reviews evidence during the Vergara trial in January, 2014.

In a resounding defeat for the state’s teachers unions, today a Superior Court judge in Los Angeles agreed with a lawsuit’s claim that teacher employment laws disproportionately hurt poor and minority children, who are saddled with the state’s worst-performing teachers. In his ruling, Judge Rolf Treu overturned five state statutes giving California teachers firing protections and rights to tenure and seniority.

The evidence of “the effect of grossly ineffective teachers on students,” Treu wrote, “is compelling. Indeed, it shocks the conscience.”

Treu’s tentative, 16-page page decision in Vergara v. California, which takes effect in 30 days, gives the first-round victory to Students Matter and its benefactor and founder, Silicon Valley entrepreneur David Welch. He sued the state on behalf of nine students in five school districts, including Beatriz Vergara, a high school student in the Los Angeles Unified School District, the first plaintiff named in the lawsuit. The case has been closely watched nationally as a bellwether that might prompt similar lawsuits in other states.

In a joint defense with the state Attorney General’s Office, the California Teachers Association and the California Federation of Teachers had vigorously defended the workplace protections as critical to recruiting and retaining teachers. The unions charged Welch with scapegoating teachers rather than addressing the true source of the achievement gap: the impacts of poverty and neighborhood violence on the lives of poor children. They promised to appeal the verdict, a process that could take years before the state Supreme Court decides it.

“Like the Vergara lawsuit itself, today’s ruling is deeply flawed,” they said in a statement. “We will appeal on behalf of students and educators. Circumventing the legislative process to strip teachers of their professional rights hurts our students and our schools.”

Lawyers for the students in the Vergara lawsuit argued that the laws shield the lowest-performing teachers from layoffs and create costly, “Byzantine” dismissal procedures. They claimed the laws disproportionately harmed the students and violated their fundamental right under the state Constitution to an opportunity for an equal education.

Treu (pronounced Troy) agreed, and struck down all five laws as unconstitutional, leaving it to the Legislature to create an alternative. In a teleconference, Ted Boutrous, the lead attorney for Students Matter, called Treu’s ruling “powerful right down the line on every issue.”

“This decision will reverberate powerfully across California and the nation because teacher tenure and dismissal laws touch on the forefront of the debate on how to improve schools to help students learn,” Boutrous said. Welch has expressed an interest in challenging similar laws in other states.

Treu agreed to an injunction, keeping the laws in place during the appeals process. Boutrous said that if the ruling is upheld during the appeals process, school districts would have to renegotiate contracts to comply with Treu’s decision or at least not enforce provisions of the law ruled unconstitutional.

Voters or the Legislature could act sooner if they choose, and that is what Welch, Los Angeles Unified Superintendent John Deasy and Students Matter attorneys urged in the phone call.

“The need for change is now,” said the other lead attorney, Marcellus McRae. “We cannot waste another day, cannot waste another child.”

Without proposing specific alternatives, Welch said he would talk about the case with legislators and urge them to pass policies “based on common sense and research.” The verdict is a call to “seize the moment and move forward,” he said. Extending the probationary period, replacing layoffs by seniority with factors based on performance and rewriting dismissal laws all would require more effective ways to evaluate teachers. Until now, the Legislature and the Brown administration have avoided taking on that issue. 

The Legislature is poised to pass Assembly Bill 215, sponsored by Assemblywoman Joan Buchanan, D-Alamo, which would make it easier to fire teachers accused of egregious misconduct, such as sexual acts against children. But the bill, which Gov. Jerry Brown said he would sign, would not substantially affect the dismissal process for teachers charged with poor performance, the focus of the Vergara lawsuit. An initiative proposed for the November ballot would substantially rewrite the state’s teacher evaluation laws, including the elimination of seniority rights. The sponsor, consultant Matt David, has not spoken publicly about the initiative and has until mid-July to obtain 505,000 signatures to qualify for the ballot. (Update: David did not pursue signatures this year; the earliest his initiative could be on the ballot is now November 2016.)

The verdict follows a two-month trial this spring in which about 60 witnesses testified. Both sides agreed that there is a small percentage of awful teachers, and that they can have an outsized impact on students. The decision cited testimony by Thomas Kane, a professor at the Harvard Graduate School of Education, that a student taught by one of the worst 5 percent of teachers would fall behind a year in math and nearly a year in reading. Lawyers for the state and teachers unions argued that the fault lies not in the laws but in their implementation. In a battle on the witness stand between disagreeing superintendents, defense experts said well-run districts can effectively fire poor-performing teachers and filter out probationary teachers who won’t cut it. And they disputed the assumption that standardized test scores – under any current methodology – can accurately determine which teachers are ineffective.

The five laws include a permanent employment statute, informally known as tenure, giving teachers due-process rights after two years of probation; three statutes that outline complex procedures to dismiss teachers; and the layoff statute, known as LIFO for Last In, First Out, mandating layoffs by seniority with some exceptions for teachers with hard-to-find expertise.

The compounded impact of those laws disproportionately “affects the stability of the learning process to the detriment of high-poverty and minority students,” Treu concluded.

Here are some of the key issues in the lawsuit:

Tenure: California is one of a handful of states that grant probationary teachers tenure or permanent status, with due process protections, after two years on the job. Forty-one states require three or more years before granting tenure. Students Matter argued that decisions actually have to be made after only 16 months on job – not enough time to make a credible assessment of a teacher’s potential and prevent weak teachers from slipping through. Treu found that a longer probationary period would serve the interests of not only students but also teachers, since some districts are tenure-shy and dismiss probationary teachers, who, with more time, could prove to be fine teachers. There’s no rational reason for the current law, he wrote.

Dismissal: Students Matter said that the prohibitive cost of firing the worst teachers – between $50,000 and $450,000 because of the time and expense of litigation – discourages districts from pursuing dismissals. The defense witnesses countered that most poorly performing teachers are counseled out of the profession without the need for litigation; effective districts do this regularly. But the plaintiffs countered that too often, bad teachers are moved around (what Treu referred to as the “Dance of the Lemons”) to unsuspecting schools with minority students, perpetuating the problem. Treu questioned whether extra layers of legal protections are needed, since non-teacher employees of school systems aren’t entitled to them. “The Court finds that the current system … to be so complex, time consuming and expensive as to make an effective, efficient yet fair dismissal of a grossly ineffective teacher illusory,” Treu wrote.

LIFO: Treu called layoffs strictly based on length of service “a lose-lose situation,” in which ineffective veteran teachers stay on the job while effective, newer teachers are let go regardless of their performance. Defense attorneys said that LIFO prevents districts from laying off better-paid veteran teachers in order to cut costs. Treu didn’t buy it. Noting that 20 states consider seniority as just one factor in layoffs, and 19 let local districts set the criteria, Treu wrote that the defense of the status quo “is unfathomable and therefore constitutionally unsupportable.”

In a statement, Joshua Pechthalt, president of the California Federation of Teachers, responded, “Rather than provide resources or working to create positive environments for students and teachers, this suit asserts that taking away rights from teachers will somehow help students.”

John Fensterwald covers education policy. Contact him and follow him on Twitter @jfenster. Sign up here for a no-cost online subscription to EdSource Today for reports from the largest education reporting team in California.


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